Libby Rod and Gun Club v. John Poteat

This is an appeal from a preliminary injunction which enjoined construction of the Libby Additional Units and Reregulation Dam (hereinafter LAURD) on the Kootenai River in Montana.

The project was authorized by the Flood Control Act of 1950 (the Act), Pub.L. 516, 64 Stat. 170 (May 17, 1950). Construction began on the main dam in 1966, and was completed in 1973. The Act authorized ten generators for the Libby Dam. Four were installed originally in the dam, and the Corps of Engineers (the Corps) intends to add four more as part of the LAURD project.

The additional units cannot be fully utilized without the construction of a reregulating dam downstream to modify river fluctuations resulting from the release of water from the main dam. The Corps, on the assumption that the 1950 Flood Control Act authorized a reregulating dam as well as the main Libby Dam, developed plans for building the reregulating facility. Funds were requested and Congress appropriated money specifically for the reregulating dam.

An Environmental Impact Statement (EIS), fashioned as a final supplement to the impact statement written for the main Libby Dam, was prepared in 1974. Apparently no objections were…

dissenting:

The principal holding of the court is that construction of the Libby reregulating dam does not have authorization or consent from Congress. As I can agree with neither the reasoning used to reach that conclusion nor the majority’s analysis of the precedents bearing on the case, I respectfully dissent.

At the outset, it should be understood that the language of 33 U.S.C. § 401 assists us in resolving certain preliminary matters, but it does not answer the ultimate question we face. It is relevant, though not especially helpful, in determining whether or not the plaintiffs have a private right of action to challenge these expenditures as unauthorized. 1 The language is relevant also to indicate that agencies of the federal government, as well as states and private entities, must obtain consent from Congress prior to constructing a dam in a navigable river. See United States v. Arizona, 295 U.S. 174 , 55 S.Ct. 666 , 79 L.Ed. 1371 (1935). Thus the Corps of Engineers may not, and it does not, rely for its authority to proceed upon some general authorization from Congress not addressed to this specific project. Beyond these questions, however, the statute provides little…

594 F.2d 742 17 ERC 1613 , 9 Envtl. L. Rep. 20 ,274 LIBBY ROD AND GUN CLUB et al., Plaintiffs-Appellees, v. John POTEAT et al., Defendants-Appellants. Nos. 78-3297, 78-3307. United States Court of Appeals, Ninth Circuit. March 15, 1979. Carl Strass (argued), Dept. of Justice, Washington, D. C., Nelson L. Bain (argued), of Sullivan, Beauregard, Clarkson, Moss, Brown & Johnson, Washington, D. C., for defendants-appellants. James H. Goetz (argued), Bozeman, Mont., for plaintiffs-appellees. Appeal from the United States District Court for the District of Montana. Before WRIGHT, KENNEDY and TANG, Circuit Judges. EUGENE A. WRIGHT, Circuit Judge: 1 This is an appeal from a preliminary injunction which enjoined construction of the Libby Additional Units and Reregulation Dam (hereinafter LAURD) on the Kootenai River in Montana. 1 2 The project was authorized by the Flood Control Act of 1950 (the Act), Pub.L. 516, 64 Stat. 170 (May 17, 1950). Construction began on the main dam in 1966, and was completed in 1973. The Act authorized ten generators for the Libby Dam. Four were installed originally in the dam, and the Corps of Engineers (the Corps) intends to add four more as part of the…